[Cite as State v. Nalls, 2026-Ohio-2854.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: C.A. No. 30691
Appellee :
: Trial Court Case No. 1989 CR 03004
v. :
: (Criminal Appeal from Common Pleas
LARRY NALLS : Court)
:
Appellant : FINAL JUDGMENT ENTRY &
: OPINION
Pursuant to the opinion of this court rendered on July 24, 2026, the judgment of the
trial court is affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
send a copy of the court’s ruling to each party and note that action on the docket.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
RONALD C. LEWIS, PRESIDING JUDGE
EPLEY, J., and HUFFMAN, J., concur.
OPINION
MONTGOMERY C.A. No. 30691
LARRY NALLS, Appellant, Pro Se
MICHAEL P. ALLEN, Attorney for Appellee
LEWIS, P.J.
{¶ 1} Appellant Larry Nalls appeals from the Montgomery County Common Pleas
Court’s order denying his April 11, 2024 petition for postconviction relief. For the following
reasons, we affirm the judgment of the trial court.
I. Course of Proceedings
{¶ 2} In 1989, Nalls was charged with two counts of rape and one count of kidnapping.
The rape charges involved allegations that Nalls had purposely compelled the victim to
engage in sexual conduct with him on August 10, 1989, by force, or by threat of force.
Following a trial, Nalls was convicted on both counts of rape, but acquitted of kidnapping.
On direct appeal, we found no error in the convictions but reversed the judgment and
remanded the matter to the trial court for resentencing, having concluded that Nalls had not
been afforded his right of allocution. State v. Nalls, 1990 WL 174154 (2d Dist. Nov. 9,
1990).
{¶ 3} On remand, the trial court sentenced Nalls to serve an indefinite term of 6 to
25 years in prison on each rape conviction. The court ordered the sentences to run
consecutively. On appeal, we affirmed the judgment of the trial court. State v. Nalls,
1991 WL 249530 (2d Dist. Nov. 7, 1991).
{¶ 4} On July 30, 1999, Nalls filed a motion for leave to file a motion for new trial.
Nalls relied on an affidavit of John Perry, who allegedly overheard the victim bragging about
putting Nalls in prison, and the recantation of trial testimony by Anthony Martin, an
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eyewitness. Following a hearing, the trial court denied the motion for leave. We affirmed
the trial court’s judgment on appeal. State v. Nalls, 2002-Ohio-2701 (2d Dist.).
{¶ 5} In 2003, Nalls filed a petition for postconviction relief, alleging that he had
recently learned of favorable evidence that had been withheld from him by defense counsel
and the prosecutor. The trial court denied Nalls’s petition. Nalls filed a notice of appeal
from the trial court’s judgment, but we dismissed the appeal as untimely filed.
{¶ 6} On April 11, 2024, Nalls filed a second petition for postconviction relief. Nalls
identified sixteen “claims for relief.” The State filed an answer to Nalls’s petition, in which it
raised res judicata as an affirmative defense. On May 1, 2024, the trial court denied the
petition for postconviction relief. According to the trial court, Nalls had failed to demonstrate
that he was unavoidably prevented from discovering the facts that he relied on in his petition,
which concerned knowledge he had gained well before he filed the petition. The court also
found that Nalls had “not shown by clear and convincing evidence that but for a constitutional
error at trial, no reasonable factfinder would have found him guilty.” Nalls filed a notice of
appeal on November 24, 2025.
II. Jurisdictional Issue
{¶ 7} Before we resolve Nalls’s assignments of error, we must consider whether we
have jurisdiction over this appeal, because the notice of appeal was not filed within 30 days
of the trial court’s final entry as required by App.R. 4(A)(1). To vest jurisdiction in an
appellate court, a party must file a timely notice of appeal. State v. Bray, 2017-Ohio-118,
¶ 9 (2d Dist.). We may raise jurisdictional issues on our own motion because subjectmatter jurisdiction “‘may not be waived or bestowed upon a court by the parties to the case.’”
Care Risk Retention Group v. Martin, 2010-Ohio-6091, ¶ 97 (2d Dist.), quoting State ex rel.
White v. Cuyahoga Metro. Hous. Auth., 1997-Ohio-366, ¶ 6.
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{¶ 8} “A postconviction proceeding is not an appeal of a criminal conviction, but,
rather, a collateral civil attack on the judgment.” State v. Steffen, 1994-Ohio-111, ¶ 60,
citing State v. Crowder, 60 Ohio St.3d 151 (1991). Consequently, courts have held that
“App.R. 4(A)(1) and (3) control appeals from the denial of a postconviction relief petition.”
State v. Brisco, 2020-Ohio-4582, ¶ 11 (10th Dist.). As noted, under App.R. 4(A)(1), notices
of appeal must be filed within 30 days after a final entry is filed.
{¶ 9} In civil cases, “if the clerk has not completed service of the judgment within the
three-day period prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R. 4(A)(1)
and 4(A)(2) begin to run on the date when the clerk actually completes service.”
App.R. 4(A)(3). Thus, “‘the filing of a notice of appeal from the denial of a petition for postconviction relief under R.C. 2953.21 must be made within 30 days of the entry of judgment
where there is compliance with Civ.R. 58(B), or within 30 days of notice of the judgment and
its entry if service is not made within the three day period of Civ.R. 58(B).’” Brisco at ¶ 13,
quoting State v. Williams, 2006-Ohio-842, ¶ 6 (10th Dist.).
{¶ 10} Civ.R. 58(B) contains certain requirements, including that the court shall
endorse on its judgment a direction to the clerk to serve upon all parties notice of the
judgment and its date of entry upon the journal. “Within three days of entering the judgment
upon the journal, the clerk shall serve the parties in a manner prescribed by Civ. R. 5(B) and
note the service in the appearance docket.” Civ.R. 58(B). The rule further states: “Upon
serving the notice and notation of the service in the appearance docket, the service is
complete.”
{¶ 11} In the case before us, the trial court did not make the required endorsement
on the judgment entry, and the clerk did not make a notation in the appearance docket
concerning the fact that it had served the required notice. In this regard, we note that there
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is no such notation in the docket sheet the clerk transmitted to us, nor is there any such
notation in the clerk’s online docket. As a result, though Nalls’s notice of appeal was not
filed within 30 days of the May 1, 2024 judgment, Nalls’s appeal of the trial court’s decision
was timely. Therefore, we have jurisdiction to resolve Nalls’s assignments of error.
III. The Trial Court Did Not Abuse Its Discretion by Denying Nalls’s Successive
Petition for Postconviction Relief
{¶ 12} Nalls raises 19 assignments of error, which are largely based on the 16 claims
for relief that he presented in his petition for postconviction relief. Based on our review of
the record and applicable law, we conclude that the trial court correctly denied his petition
because Nalls failed to satisfy the requirements of R.C. 2953.23(A)(1)(a) and (b), and most
of his arguments are barred by the doctrine of res judicata.
{¶ 13} Generally, we review trial court’s decisions granting or denying petitions for
postconviction relief under an abuse-of-discretion standard. State v. Perkins, 2011-Ohio5070, ¶ 16 (2d Dist.), citing State v. Gondor, 2006-Ohio-6679, ¶ 45. However, whether the
trial court possessed subject-matter jurisdiction to entertain a petition for postconviction relief
is a question of law subject to de novo review. State v. Bethel, 2022-Ohio-783, ¶ 20, citing
State v. Apanovitch, 2018-Ohio-4744, ¶ 36.
{¶ 14} Pursuant to R.C. 2953.21(A)(1)(a), “[a]ny person who has been convicted of a
criminal offense . . . and who claims that there was such a denial or infringement of the
person’s rights as to render the judgment void or voidable . . . may file a petition in the court
that imposed sentence, stating the grounds for relief relied upon, and asking the court to
vacate or set aside the judgment or sentence or to grant other appropriate relief.” Nalls’s
19 assignments of error are based on the 16 claims for relief he raised in his petition for
postconviction relief. Many of Nalls’s assignments of error are conclusory and repetitive.
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He raises the following primary arguments in his 19 assignments of error: (1) Anthony
Martin, a key eyewitness, recanted his trial testimony; (2) state authorities failed to conduct
a fair and reasonable investigation; (3) the prosecutor willfully threatened and tampered with
witnesses; (4) the prosecutor and defense counsel willfully conspired and colluded with each
other to threaten witnesses and withhold exculpatory evidence; (5) Nalls was wrongfully
imprisoned; (6) the trial court abused its discretion by denying his petition without a hearing;
(7) his convictions were against the manifest weight of the evidence; (8) he was falsely
arrested; and (9) the cumulative effect of errors during trial deprived him of a fair trial.
{¶ 15} The petition at issue in this appeal is Nalls’s second petition for postconviction
relief relating to his convictions for rape. A trial court does not have subject-matter
jurisdiction to adjudicate a successive petition for postconviction relief unless one of the
exceptions in R.C. 2953.23(A)(1) and (2) apply. The only possible exception that could
apply in this matter is set forth in R.C. 2953.23(A)(1). That provision requires the petitioner
to establish that he was either: (1) unavoidably prevented from discovering the facts upon
which he relies to present his claim or (2) subsequent to the period prescribed in
R.C. 2953.21(A)(2) or to the filing of an earlier petition, the United States Supreme Court
recognized a new federal or state right that applies retroactively to the petitioner’s situation
and the petition asserts a claim based on that right. R.C. 2953.23(A)(1)(a). “The petitioner
must also show by clear and convincing evidence that, if not for the constitutional error from
which he suffered, no reasonable factfinder could have found him guilty.” State v.
DeVaughns, 2017-Ohio-475, ¶ 26 (2d Dist.), citing R.C. 2953.23(A)(1)(b).
{¶ 16} We agree with the trial court that Nalls’s petition for postconviction relief did
not satisfy the requirements of R.C. 2953.23(A)(1)(a). First, Nalls did not demonstrate that
he was unavoidably prevented from discovering the facts upon which his postconviction
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claims depended. Second, he did not allege that the United States Supreme Court had
recognized a new federal or state right that applied retroactively to his situation.
{¶ 17} Nalls “bears the burden of showing that he was unavoidably prevented from
discovering the evidence on which the petition relies.” State v. Johnson, 2024-Ohio-134,
¶ 18. “A petitioner may make the required showing either by establishing a violation under
Brady [v. Maryland, 373 U.S. 83 (1963)], or by demonstrating that he was previously
unaware of the evidence on which the petition relies and could not have discovered it by
exercising reasonable diligence.” Id.
{¶ 18} Nalls did not explain in his April 11, 2024 petition how he was unavoidably
prevented from discovering the evidence that he referenced in his petition. Most of the
evidence referenced in his petition was dated prior to the date on which he filed his first
petition for postconviction relief. Notably, the only supporting document actually submitted
with his petition for postconviction relief is a March 28, 2024 affidavit signed by Nalls.
Nowhere in Nalls’s affidavit does he explain how he was unavoidably prevented from
discovering the evidence that he referenced in his petition. Therefore, Nalls failed to
establish that he was unavoidably prevented from discovering the facts upon which he relied
to present his claims. R.C. 2953.23(A)(1)(a).
{¶ 19} We acknowledge that Nalls referenced some evidence in his petition that was
dated after he filed his first petition for postconviction relief. For example, Nalls relied on
the March 4, 2011 affidavit of Loretta Barton. But “R.C. 2953.23(A)(1)(a) requires a
petitioner to submit evidence of specific facts beyond the supporting affidavit’s date to
explain why the petitioner was unable to timely obtain an affidavit from” a witness. Johnson
at ¶ 27. The Barton affidavit is not in the record before us, so we cannot determine whether
it provided specific facts to explain why Nalls was unable to timely obtain the affidavit.
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Nalls’s petition also identified a 2019 sexual abuse psychosocial assessment in which Nalls
claims the mother of the rape victim stated that the victim had admitted she lied about being
raped by Nalls. However, Nalls did not submit the alleged psychosocial assessment with
his petition for postconviction relief. The lack of any evidence in support of his petition for
postconviction relief is a recurring, fatal problem with Nalls’s April 11, 2024 petition.
{¶ 20} Alternatively, Nalls could have met his burden under R.C. 2953.23(A)(1)(a) by
establishing a Brady violation. To do so, Nalls was required to establish that the State had
suppressed the evidence on which he relies, as is necessary for a Brady claim. While Nalls
stated repeatedly in his petition for postconviction relief that the State had committed Brady
violations, Nalls did not attach any affidavits establishing that the State had possessed the
alleged evidence prior to Nalls’s trial and that the State had not provided Nalls with the
evidence before trial through the discovery process. Indeed, Nalls did not submit any
affidavits or evidence detailing how and when he learned about the existence of any alleged
Brady material. Rather, his petition simply notes that he was incorporating by reference
several affidavits and pieces of evidence that were filed in another criminal case,
Montgomery C.P. No. 2020 CR 1992, which involved Nalls’s convictions in 2022 for illegal
use of a minor in nudity-oriented material or performance; gross sexual imposition; sexual
imposition; and having a weapon under disability.
{¶ 21} In Case No. 2020 CR 1992, the trial court denied Nalls’s motion to consolidate
that case with the criminal case before us. We affirmed that judgment on direct appeal.
State v. Nalls, 2025-Ohio-3168, ¶ 19 (2d Dist.). Nalls also filed a motion in the current case
to consolidate his two criminal cases. The trial court denied his motion to consolidate and
Nalls does not challenge that decision in this appeal. As a result, the affidavits and
evidence referenced in Nalls’s petition that presumably were filed at some point in Case No.
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2020 CR 1992 are not in the record before us and were not before the trial court when it
ruled on Nalls’s successive petition for postconviction relief.
{¶ 22} In short, our record does not contain the affidavits and evidence that Nalls
unsuccessfully attempted to incorporate by reference in his second petition for
postconviction relief. We acknowledge that Nalls attached the affidavits of Loretta Barton
and Anthony Martin to his appellate brief in the current appeal. But “[a] reviewing court
cannot add matter to the record before it, which was not a part of the trial court’s
proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail,
54 Ohio St.2d 402 (1978), paragraph one of the syllabus. Due to the lack of affidavits and
evidence in support of his petition for postconviction relief, Nalls has failed to establish a
Brady violation. Therefore, the trial court was without subject-matter jurisdiction to entertain
Nalls’s successive petition for postconviction relief. R.C. 2953.23(A)(1).
{¶ 23} There are two additional, independent bases on which we affirm the trial
court’s judgment. First, Nalls’s failure to submit any evidence in support of his petition for
postconviction relief prevented Nalls from showing by clear and convincing evidence that, if
not for the constitutional error from which he suffered, no reasonable factfinder could have
convicted him. DeVaughns, 2017-Ohio-475, at ¶ 26 (2d Dist.), citing R.C. 2953.23(A)(1)(b).
Consequently, the trial court correctly denied Nalls’s petition for postconviction relief
pursuant to R.C. 2953.23(A)(1)(b).
{¶ 24} Second, most of Nalls’s claims raised in his successive petition for
postconviction relief are barred by res judicata. The state raised a res judicata defense in
its answer to Nalls’s successive petition for postconviction relief. Under the doctrine of res
judicata, “[a] valid, final judgment rendered upon the merits bars all subsequent actions
based upon any claim arising out of the transaction or occurrence that was the subject matter
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of the previous action.” Grava v. Parkman Twp., 1995-Ohio-331, syllabus. “‘Accordingly,
if the claims brought in a second petition for post-conviction relief are ones that were or could
have been brought in an earlier petition for post-conviction relief, a trial court does not abuse
its discretion in denying the second petition for post-conviction relief on the basis of res
judicata.’” State v. Weber, 2020-Ohio-4851, ¶ 15 (2d Dist.), quoting State v. Finfrock,
1998 WL 726478, *5 (2d Dist. Oct. 16, 1998).
{¶ 25} Most of the arguments Nalls raised in his April 11, 2024 petition were or could
have been raised in prior proceedings. For example, (1) his manifest weight and cumulative
error arguments were or could have been raised on direct appeal from his convictions; (2) his
arguments regarding Anthony Martin’s recantation were raised in his 1999 motion for leave
to file a motion for new trial and could have been raised in his 2003 petition for postconviction
relief; and (3) his arguments regarding the withholding of exculpatory evidence were or could
have been raised in his 2003 petition for postconviction relief. Consequently, the trial
court’s denial of Nalls’s second petition for postconviction relief is also supported by the
doctrine of res judicata.
{¶ 26} Finally, Nalls states that the trial court abused its discretion by failing to hold a
hearing before denying his April 11, 2024 petition for postconviction relief. We do not agree.
“According to the postconviction relief statute, a criminal defendant seeking to challenge his
conviction through a petition for postconviction relief is not automatically entitled to a
hearing.” State v. Calhoun, 1999-Ohio-102, ¶ 13, citing State v. Cole, 2 Ohio St.3d 112
(1982). Rather, “[b]efore granting a hearing on a petition . . . , the court shall determine
whether there are substantive grounds for relief.” R.C. 2953.21(D). Moreover,
R.C. 2953.23(A) states that regardless of whether a hearing is held, a trial court may not
consider a successive petition for postconviction relief if the petitioner failed to satisfy
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R.C. 2953.23(A)(1) or (2). Given that Nalls failed to satisfy the requirements of
R.C. 2953.23(A)(1) or (2) and failed to submit any evidence to establish a substantive
ground for relief, we cannot conclude that the trial court abused its discretion by denying
Nalls’s April 11, 2024 petition for postconviction relief without holding a hearing.
{¶ 27} The assignments of error are overruled.
IV. Conclusion
{¶ 28} Having overruled the assignments of error, we affirm the judgment of the trial
court.
EPLEY, J., and HUFFMAN, J., concur.
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